cv2012 090514 complaint_redacted

7/31/2019 CV2012 090514 Complaint_Redacted

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Plaintiff Pro Se

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

Plaintiff,vs.

Sullivan Motor Company, inc., et al

Defendant.

Case no.

CIVIL ACTION

WRONGFUL TERMINATIONIN VIOLATION OF THE

PUBLIC POLICY

INTRODUCTION

1. Comes now the Plaintiff, ., a natural born law abiding American,

a lay person unschooled in the practice of law, who is over the age of 18 and a

resident of Mesa, Arizona.

2. The Defendant, Sullivan Motor Company, inc.,(SMC) is a for profit corporation

domiciled in Arizona, the county of Maricopa. SMC operates an entity at 1515 W.

Broadway Rd., Mesa, AZ 85202 of the same name, a used car lot replete with a

sales department, service department, vehicle detail department and vehicle towingdepartment. With buildings, offices, structures, equipment and staff to facilitate the

operation.

3. Keith Canete (Mr. Canete) is SMCs Service Department Manager and charged with

the task of implementing and managing the newly formed towing department.

Fabian is the General Manager of SMC.

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JURISDICTION AND VENUE

4. This court has original jurisdiction pursuant to ARS Title 12, Chapter 1, Article 2

123 and the Arizona Constitution Article VI 14.

5. Venue is proper pursuant to ARS Title 12, Chapter 4, Article 1 401.

JURY DEMAND

6. Pursuant to the Arizona Constitution Article VI 17, Plaintiff demands jury trial.

BACKGROUND

7. Plaintiff was employed by the Defendant as a Tow Truck Driver. Plaintiffs

immediate supervisor was Mr. Canete and Fabian above him in the hierarchy of

SMC.

8. On December 23, 2011, about 8:15am Mr. Canete informed Plaintiff that there is a

mandatory company meeting at 9:00am. Around 8:30am Mr. Canete instructed

Plaintiff to assist a person loading a vehicle on a car trailer in the dirt lot. This task

overran the time frame for the entire meeting.9. About 9:30am while passing through the meeting area Fabian handed Plaintiff a

paper [Plaintiff exhibit A] with no further explanation or instructions, he just handed

it to me as I passed through. The paper was from Icon Employer Service, inc. a

Professional Employer Organization(POE) and addressed to the employees of SMC.

It was signed by Gary C. Mecham an officer of the POE. This paper reads like an

elementary school assignment whereas the author has no knowledge of the law or

ethics concerning the subject.

10. Mr. Mecham does however successfully isolate his organization from all damages

caused to the Plaintiff by being wrongfully terminated by the Defendant and that is

why the POE is not named as a Defendant party to this civil action. Ill explain:

11. The paper is a memo that Mr. Mecham has arranged a company wide drug test for

all employees of SMC, who are willing to voluntarily go to the area you are

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directed and provide your specimen. This instruction is unambiguous: Anyemployee wishing to deprive themselves of their right to privacy and submit to an

otherwise unlawful employee drug test may do so. Period.

12. About 10:00am Mr. Canete asked me if I took the drug test, told him I had issue with

it and that if he could show me in the written policy were this drug test is authorized

I would take the test, otherwise it is an invasion of privacy and I dont have to.

13. Mr. Canete found the written policy and showed it to me the only condition drug

testing of employees is allowed is post-accident, I had not been involved in an

accident, therefor am not subject to a drug test under the authority of Arizona Law

so Plaintiff exercised his lawful right not to participate.

14. At this point Mr. Canete turned Plaintiff over to Fabian who in turn ushered Plaintiff

into his office. He asked why I wouldnt take the drug test and I explained he did

not have the lawful authority to arbitrarily drug test employees and that if he wanted

me to respect his rules he has to respect the laws that govern him as an employer.

Fabian obviously disagrees with this notion as manifest in his next actions:

15. Fabian ridiculed and made fun of Plaintiff by insinuating that because I wouldnturinate in a little plastic cup and hand it over to a perfect stranger so he/she could in

turn deliver it to a laboratory for medical analysis, combined with the fact that no

one else questioned Defendants authority that I must be on drugs.

16. Plaintiff considers this behavior degrading and appalling and right out of the

communist play book: Saul Alinskys Rules for radicals Number 7 Tactics rule 5:

Ridicule is man's most potent weapon.It is almost impossible to counteract

ridicule. Also it infuriates the opposition, which then reacts to your advantage.

Any reasonable thinking person would have to agree, Fabian could not win that

argument honestly, its fallacious inasmuch as any person with a lick of sense knows

that drug testing is not a perfect science and the results are not one hundred percent

accurate, therefor it would only stand to reason that if person was on drugs the

logical thing to do would be to take the drug test in hopes of a false negative result

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rather than refuse which is considered to be a positive result with no chance of anegative result. Anyway when Plaintiff insisted on maintaining his right to privacy

Fabian retaliated by terminating his employment.

17. I cant help but wonder: Why was Plaintiff the only man not willing to surrender

his right to privacy to this bourgeois? Was it that they are willing to have their

rights raped by the Defendant in exchange they keep theyre jobs? Perhaps, but

Plaintiff has a very different theory, the light of truth will shine as this civil action

moves through this court.

18. Plaintiff assumes that Fabian, at the meeting and contrary to what the paper he

passed out to everyone says, said the drug test was mandatory. Why would

anybody believe such a blatant lie? I think because the Defendant lives by a

different set of rules:

19. Saul Alinskys rules for radicals: Number7 Tactics Rule 3: Whenever possible,

go outside the expertise of the enemy. Look for ways to increase insecurity,

anxiety and uncertainty. Employer drug testing of employees is quite

commonplace today and employees depend on the employer to just do the right thingand normally they do. However SMC does not. They count on the trust and

ignorance of their employees to get away with non compliance of the law. I guess

employees of a used car lot arent supposed to know much about employee drug

testing.

20. However unbeknownst to the Defendant, Plaintiff is well educated in employee drug

testing. In the early 1990's as General Superintendent of Ceiling Concepts Plaintiff

took on the task of completing a comprehensive feasability study onimplementing a

drug-free workplace. Interestingly Plaintiff found that the odds ofbeing sued by an

employee was far too great to justify implementing a 'drug-free workplace", for the

simple reason it is only mandatory for federal grantees.

Plaintiff told Fabian, I dont know the statutes to cite, but I know your violating me

and when I find out the laws you are breaking I will let you know.

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21. In Arizona drug testing of employees is promulgated in ARS Title 23, Chapter 1,

Article 14, employer compliance with the requirements of the written policy, albeit

voluntary [ARS 23-493.08.C], non compliance of the article strips the employer of

lawful authority to drug test. Defendant has successfully reduced employee drug

testing to nothing more than a tool he uses to show the little people just who the boss

is and on the rare occasion some one calls him on it, Fabian makes no pretense of

good faith by investigating the claims made by the employee. Oh no of coarse not,

that would mean having to admit what is really going on. Fabian would rather just

get rid of the problem by firing the Plaintiff, thatll teach me to stand for my rights.

Plaintiff alleges for an employer to retaliate against an employee by terminating his

employment for exercising a protected right, under Arizona Law [ARS 23-493.06]

the employee shall have the right to bring a tort claim for wrongful termination in

violation of the public policy.

22. Had Plaintiff allowed Defendant to rape him of his protected constitutional rights,

Plaintiff career could have been snuffed out at any time anyway:

23. Defendant purchased a tow truck. Plaintiff was assisting in bringing it intocompliance with Arizona Administrative Code(AAC) Title 13, Chapter 3, however,

before this was accomplished Defendant put the tow truck in service, and without the

bright orange sticker on the lower right side of the windshield Plaintiff could have

been pulled over by DPS and the tow truck could have been denied a sticker for up

to a year.

24. The personal devastation wreaked upon the Plaintiff is enormous. Then to add insult

to injury. Plaintiff discovers what he found attractive about Defendant, that is the

way they wrapped themselves in the American flag as an advertising logo(Plaintiff

considers himself to be very patriotic)is in violation of United States Code Title 4,

Chapter 1.

25. Defendant being hoist by ones own petard] truly would be justice indeed! . . .

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CLAIM FOR REDRESS

26. Plaintiff incorporates 1. Through 25. By reference.

27. Protection from the immoral, unethical, deceitful and unlawful actions perpetrated

by the Defendant upon the Plaintiff causing him monumental personal damage is set

forth in Arizonas Employee Protection Act of 1996 as defined and put into law in

ARS 23-1501-2 for the sole purpose of reigning in out of control persons like

Sullivan Motor Company, inc. The likes of which cause personal devastation, by

destroying peoples lives just to boost their own ego, despicable.

28. Based on these facts Plaintiff asserts: Defendants firing the Plaintiff in retaliation

for exercising his protected constitutional right to privacy is WRONGFUL

TERMINATION IN VIOLATION OF THE PUBLIC POLICY for which

Plaintiff seeks redress:

29. ARS 23-1501: The public policy of this state is that:

30. ARS 23-1501 3.(c)(I):

An employee has a claim against an employer for termination of employment

only ifone or more of the following circumstances have occurred:The employer has terminated the employment relationship of anemployee in retaliation for any of the following:The refusal by the employee to commit an act or omission that would violatethe Constitution of Arizona . . .

31. Also see: Arizona Supreme Court CV-98-0495-SA and CV-98-0580-SA opinion

17:

With the 1996 passage of the EPA, the legislaturelimited plaintiffs to three avenues of relief for claimsasserted against employers on the theory of wrongful discharge.The EPA permits such employee claims if: (a) the discharge was

in violation of an employment contract, (b) the dischargeviolated a statute of this state, or the discharge was inretaliation for the employees assertion of certain rights

protected by state law.

BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING


33. Plaintiff entered into an agreement with the Defendant on or about December 12,

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2011. Plaintiff agreed to work Monday-Friday 8:00am till 5:00pm and be on call therest of the time. Defendant in return compensates Plaintiff five hundred and fifty

dollars per week for an indefinite period of time. Severable by either party at any

time. For any good reason or for no reason at all.

34. The public policy of the State of Arizona holds that the employer/employee

relationship is contractual in nature. Arizona courts have long held that every

contract contains an implied duty to act in good faith and with fair dealing. The

Arizona Supreme Court expanded on this and found that for reasons inconsistent

with the other partys justified expectations constitutes a breach [AZ Supreme Court;

Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local No.

395 Pension Trust]. Plaintiff alleges that he certainly is justified in expecting more

than two weeks work especially as Plaintiff had been gainfully employed by Speedy

Towing for two years prior to Defendant soliciting Plaintiff for a job! Also:

35. On December 23, 2011 Defendant acted in bad faith by terminating the contract for

no other reason than Plaintiff refusing to give into Defendants arbitrary violation of

Plaintiffs lawfully protected constitutional right to privacy and did so on its ownauthority completely void of any lawful authority whatsoever.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS


37. Extreme and outrageous action, to utterly destroy a persons life, to take away his

lively-hood just because he miss judged Plaintiffs knowledge of the subject, just

because Defendant couldnt fool or intimidate Plaintiff into submission to satisfy his

own arrogance.

38. Defendants actions easily rise to the requisite extreme and outrageous acts.

PRAYER FOR RELIEF


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40. Plaintiff prays that this Honorable Court finds in favor of the Plaintiff and against the

Defendant in all matters of this complaint, just and equitable:

41. That this Honorable Court orders the Defendant to reinstate his employment and pay

him retroactive back-pay from the day Plaintiff was wrongfully terminated, and that

Plaintiff keeps his seniority for all purposes, just as though his employment was

never interrupted, or in the alternative order Defendant to pay compensatory

damages to the Plaintiff in the amount equal to fulfilling the agreement between

Plaintiff and Defendant that Defendant breached in bad faith in the amount of four

hundred fifty seven thousand six hundred dollars ($457,600.00).

42. That this Honorable Court order the Defendant to pay Plaintiff for hardship, pain and

suffering an amount equitable and just as determined by the Jury.

43. That this Honorable Court order the Defendant to pay Plaintiff punitive damages an

amount equitable and just as determined by the Jury.

44. Grant to Plaintiff such other and further relief as may be just and proper under the

circumstances.

Under penalty of perjury. This sixth day ofMarch, 2012.

Y_______________

Plaintiff Pro Se

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cv2012 090514 complaint_redacted

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